Lundapplied for a special permit to operate an adult entertainment club inFall River, but his proposed location did not comply with sections of the Mass. Zoning Code. It fell within an industrial district, which was forbidden, and did not conform to numerous site development standards. After his variance pleas were denied,Lundfiled this action with the court.
The court has previously found that a municipality may, when acting to further legitimate ends of the community, impose incidental barriers on adult entertainment. The constitutionality of zoning ordinances on adult entertainment are governed by a framework that consists of different factors, butLundhas conceded that the sole question presented here is whether the Code provides for reasonable alternative avenues of communication. The court accepts the figure provided by the city regarding the total developable land available under the city’s ordinances as 28.52 acres, or .24% of the city’s total developable acreage. Although .24% is a marginal number, the court decided that it is significant enough to render the amount of land available reasonable.Lundargues he would have to buy multiple parcels in order to do so, but that alone is not reason enough to render the land a non-reasonable alternative.
In determining whether or not the alternative land is reasonable, the court also looked to the number of sites. There are at least eight viable sites that could be suitable within the property, therefore it is not an unreasonable number. The ordinances applied do not infringe uponLund’s First Amendment rights since there are reasonable alternative avenues.
Lund v. City ofFall River, 2012 WL 1856947 (Mass. Dist. Ct.5/22/2012)
The opinion can be accessed at: http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=otoole/pdf/lund%20v%20city%20of%20fall%20river%20order.pdf
